NO. 16-605
In the Supreme Court of the United States
TOWN OF CHESTER, NEW YORK,
v.
LAROE ESTATES, INC.,
Petitioner,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Second Circuit
BRIEF AMICUS CURIAE THE NATIONAL ASSOCIATION
OF COUNTIES, THE NATIONAL LEAGUE OF CITIES,
THE U.S. CONFERENCE OF MAYORS, AND THE
INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION
IN SUPPORT OF PETITIONER
LISA SORONEN
Executive Director
STATE AND LOCAL
LEGAL CENTER
444 Capitol Street NW
Suite 515
Washington, D.C. 20001
(202) 434-4854
[email protected]
CHARLES W. THOMPSON, JR.
INTERNATIONAL MUNICIPAL
LAWYERS ASSOCIATION
51 Monroe Street
Suite 404
Rockville, MD 20850
(202) 466-5424
[email protected]
SARAH M. SHALF
Counsel of Record
EMORY LAW SCHOOL SUPREME
COURT ADVOCACY PROGRAM
1301 Clifton Road
Atlanta, GA 30322
(404) 712-4652
[email protected]
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
TABLE OF CONTENTS .............................................. i
TABLE OF AUTHORITIES ...................................... iv
INTEREST OF AMICUS CURIAE ........................... .1
SUMMARY OF THE ARGUMENT ........................... 2
ARGUMENT……………………………………………...3
I. ALLOWING PARTIES TO INTERVENE
WITHOUT
ARTICLE
III
STANDING
REMOVES A CHECK AGAINST FRIVOLOUS
CLAIMS
AND
UNNECESSARILY
COMPLICATES LITIGATION ......................... 3
A. Intervention
Allows
Parties
to
Participate Fully in the Litigation as a
Party. ............................................................... 3
B. The Supreme Court Has Long Held That
a Party That Wishes To Invoke The
Jurisdiction Of Any Federal Court Must
Have Standing To Bring A Suit As A
Check On Litigation ..................................... 4
C. Generally, Requiring Intervenors to
Demonstrate
Standing
Aligns
the
Intervenors’ Economic Interests With
Those of the Other Parties to the Suit ..... 5
ii
D. Requiring Intervenors to Demonstrate
Standing Also Ensures the Courts Are
Not Employed to Decide Ideological
Issues ............................................................... 7
II. FAILING TO REQUIRE STANDING OF
INTERVENORS POSES A PARTICULAR
PROBLEM FOR STATE AND LOCAL
GOVERNMENTS AND THEIR TAX PAYERS.
................................................................................ 9
A. When Intervenors Complicate Litigation
Involving Government Entities, the
Increased Cost of the Litigation Falls on
the Taxpayer .................................................. 9
B. Intervenors
In
Suits
Involving
Government Entities May Be More Likely
To
Have
An
Ideological
Interest,
Resulting In A Greater Risk Of Litigation
Over Generalized Grievances .................. 11
C. Allowing
Intervention
Forces
Government
Entities
to
Litigate
Positions Beyond the Point Where the
State Would Choose to Avoid Further
Expenditure of Government Funds, In
Order to Avoid Allowing An Intervening
Third Party to Control the Result .......... 15
iii
D. Allowing Parties to Intervene Without
Article III Standing Leads to Prolonged
Litigation Because Settlements Become
More Difficult .............................................. 18
CONLUSION ............................................................ 20
iv
TABLE OF AUTHORITIES
Supreme Court of The United States
Arizonans for Official English v. Arizona, 520 U.S.
43 (1997) .................................................................. 4
Diamond v. Charles, 476 U.S. 54 (1986) .................. 16
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ............................................. 8, 9
Muskrat v. United States, 219 U. S. 346 (1911) ........ 8
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ........... 17
Raines v. Byrd, 521 U.S. 811 (1997) .......................... 8
Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) ..... 4
Schlesinger v. Reservists Comm. To Stop the War,
418 U.S. 208 (1974) ................................................. 8
United States v. SCRAP, 412 U.S. 669 (1973) ........... 9
United States Courts of Appeal
Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525 (7th
Cir. 1988) ......................................................... 18, 19
Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir.
1989) ........................................................................ 3
v
Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir.
2015) ........................................................................ 8
Keith v. Daley, 764 F.2d 1265 (7th Cir. 1985) ........... 6
Laroe Estates, Inc. v. Town of Chester, 828 F.3d 60
(2d Cir. 2016) ......................................................... 17
League of United Latin Am. Citizens v. Wilson, 131
F.3d 1297 (9th Cir. 1997) ........................................ 3
New Jersey. v. EPA, 663 F.3d 1279 (D.C. Cir. 2011)
(Brown, J., dissenting) ........................................ 4, 5
Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (9th
Cir. 1982) ............................................................... 12
Solid Waste Agency v. United States Army Corps of
Eng’rs, 101 F.3d 503 (7th Cir. 1996) .............. 10, 19
United States v. City of Chicago, 897 F.2d 243 (7th
Cir. 1990) ............................................................... 19
United States v. Yonkers Board of Education, 801
F.2d 593 (2d Cir. 1986) ......................................... 19
Other Courts
Altitude Nines, LLC v. Deep Nines, Inc., Index No.
603268-2008E (N.Y. Sup. Ct. 2008) ..................... 19
Mausolf v. Babbitt, 913 F. Supp. 1334 (D. Minn.
1996) ........................................................................ 9
vi
Secondary Sources
Abram Chayes, The Role of the Judge in Public Law
Litigation, 89 HARV. L. REV. 1281 (1976) ............. 10
Amy Gardner, An Attempt to Intervene in the
Confusion: Standing Requirements for Rule 24
Intervenors, 69 U. CHI. L. REV. 701 (2002) ....... 3, 12
Carl Tobias, Standing to Intervene, 1991 WIS. L. REV.
415 (1991) ...................................................... 4, 9, 18
Cindy Vreeland, Public Interest Groups, Public Law
Litigation, and Federal Rule 24(a), 57 U. CHI. L.
REV. 279 (1990) ............................................. 6, 7, 10
Kelly J. Lynch, Best Friends?: Supreme Court Law
Clerks on Effective Amicus Curiae Briefs, 20 J. L.
& POLITICS 33 (2004) ............................................. 13
Kenneth E. Scott, Standing in the Supreme Court A Functional Analysis, 86 HARV. L. REV. 645
(1973) ....................................................................... 7
Kevin Hallstrom, Standing Down: The Negative
Consequences of Expanding Hawaii's Doctrine of
Standing. 30 U. HAW. L. REV. 475 (2007) .......... 5, 6
Matthew Light, Standing of Intervenor-Defendants
in Public Law Litigation, Fordham L. Rev. 1539
(2012) ....................................................................... 5
vii
Peter A. Appel, Intervention in Public Law
Litigation: The Environmental Paradigm, 78
WASH. U. L. Q. 215 (2000) ........................... 6, 10, 13
Richard L. Revesz and Michael A. Livermore,
Retaking Rationality: How Cost-Benefit Analysis
Can Better Protect the Environment and Our
Health, Oxford University Press (2008) ................ 5
Steven Shavell, Suit, Settlement, and Trial: A
Theoretical Analysis Under Alternative Methods
for the Allocation of Legal Costs, 11 J. LEGAL STUD.
55 (1982) .................................................................. 4
Other Authorities
Mike Maciag, From Police Shootings to Playground
Injuries, Lawsuits Drain Cities’ Budgets,
Governing the States and Localities (November
2016),
http://www.governing.com/topics/finance/govgover
nment-lawsuits-settlements.html ........................ 11
Stopping The Sale On Lawsuits: A Proposal To
Regulate Third Party Investments In Litigation,
U.S. Chamber Institute For Legal Reform, October
2012, http://www.instituteforlegalreform.com/
uploads/sites/1/TPLF_Solutions.pdf..................... 19
Rules And Regulations
FED. R. CIV. P. 24 ............................................... passim
viii
SUP. CT. R. 37.6 ........................................................... 1
“Enhancing Public Safety in the Interior of the
United States.” Exec. Order No. 13,768, 82 Fed.
Reg. 8799 (Jan. 25, 2017) ..................................... 13
1
INTERESTS OF THE AMICUS CURIAE1
The National Association of Counties (NACo) is
the only national organization that represents
county governments in the United States. Founded
in 1935, NACo provides essential services to the
nation’s 3,069 counties through advocacy, education,
and research.
The National League of Cities (NLC) is dedicated
to helping city leaders build better communities.
NLC is a resource and advocate for 19,000 cities,
towns and villages, representing more than 218
million Americans.
The U.S. Conference of Mayors (USCM), founded
in 1932, is the official nonpartisan organization of all
United States cities with a population of more than
30,000 people, which includes over 1,200 cities at
present. Each city is represented in USCM by its
chief elected official, the mayor.
1 Pursuant to Rule 37.6 amicus curiae affirms that no counsel
for a party authored this brief in whole or in part, that no
counsel or a party made a monetary contribution intended to
the preparation or submission of this brief, and no person other
than amicus curiae, its members, or its counsel made a
monetary contribution to its preparation or submission.
The parties’ consents to the filing of this brief have been
filed with the Clerk’s office in conjunction with the certificate of
service.
2
The International Municipal Lawyers Association
(IMLA) has been an advocate and resource for local
government attorneys since 1935. Owned solely by
its more than 2,500 members, IMLA serves as an
international clearinghouse for legal information and
cooperation on municipal legal matters. IMLA’s
mission is to advance the responsible development of
municipal law through education and advocacy by
providing the collective viewpoint of local
governments around the country on legal issues
before the Supreme Court of the United States, the
United States Courts of Appeals, and state supreme
and appellate courts
SUMMARY OF THE ARGUMENT
The Second Circuit’s ruling allowing Laroe
Estates, Inc. to intervene under Rule 24 without first
showing Article III standing sets a dangerous
precedent that allows parties without a direct and
concrete stake in the outcome of a case to prolong
and complicate litigation, resulting in increased costs
of litigation.
The consequences are even more
serious in cases involving state and local
governments, as the cost of intervention also comes
at the expense of taxpayers, complicating litigation
(as well as settlement), and forcing government
entities to continue to litigate in order to avoid
allowing third-parties to control the results of the
litigation, which can have significant public policy
consequences. Amicus urges the Court to reverse the
Second Circuit’s decision and hold that Article III
standing is required for intervenors.
3
ARGUMENT
I. ALLOWING PARTIES TO INTERVENE
WITHOUT ARTICLE III STANDING
REMOVES A CHECK AGAINST FRIVOLOUS
CLAIMS AND UNNECESSARILY
COMPLICATES LITIGATION
A. Intervention Allows Parties to Participate Fully in the Litigation as a Party.
Intervenors of right can “litigate fully once
admitted to a suit,” which “[has] the inevitable effect
of prolonging the litigation to some degree.” League
of United Latin Am. Citizens v. Wilson, 131 F.3d
1297, 1304 (9th Cir. 1997). Intervention of right
allows intervenors to effectively take over litigation
from the original plaintiffs and defendants in
litigation. See Amy Gardner, An Attempt to Intervene
in the Confusion: Standing Requirements for Rule 24
Intervenors, 69 U. CHI. L. REV. 701, 702 (2002), see
also Chiles v. Thornburgh, 865 F.2d 1197, 1216 (11th
Cir. 1989) (“The duplicative nature of the claims and
interests [the intervenors] asserted threatens to
unduly delay the adjudication of the rights of the
parties in the lawsuit and makes it unlikely that any
new light will be shed on the issues to be
adjudicated.”).
4
B. The Supreme Court Has Long Held That
a Party That Wishes To Invoke The Jurisdiction Of Any Federal Court Must
Have Standing To Bring A Suit as a
Check on Litigation.
Courts have long held that “one component of a
case or controversy is that a party who invokes
federal court jurisdiction must have standing to sue.”
Arizonans for Official English v. Arizona, 520 U.S.
43, 64 (1997). Further, under the American Rule, a
petitioner must bear all costs associated with
bringing a suit. See Ruckelshaus v. Sierra Club, 463
U.S. 680, 682–84 (1983). The system forces litigants
to make economically efficient decisions, such that a
“rational plaintiff will bring suit only if the expected
judgment would be at least as large as his expected
legal costs, i.e. the total legal costs discounted by his
probability of losing at trial.” New Jersey. v. EPA,
663 F.3d 1279, 1288 (D.C. Cir. 2011) (Brown, J.,
dissenting); see also Steven Shavell, Suit, Settlement,
and Trial: A Theoretical Analysis Under Alternative
Methods for the Allocation of Legal Costs, 11 J. Legal
Stud. 55, 58 (1982).
Judges have found that standing is a useful
safeguard in managing the “litigation explosion”
caused by the 1966 amendments to the Federal
Rules of Civil Procedure. The amendments relaxed
party joinder requirements. See Carl Tobias,
Standing to Intervene, 1991 Wis. L. Rev. 415, 439
(1991). As a check against the relaxed joinder rules,
Article III standing limits federal jurisdiction to
cases where parties have a personal stake in the
outcome. See Matthew Light, Standing of Intervenor-
5
Defendants in Public Law Litigation, Fordham L.
Rev. 1539, 1584 (2012).
C. Generally, Requiring Intervenors to
Demonstrate
Standing
Aligns
the
Intervenors’ Economic Interests With
Those of the Other Parties to the Suit.
“[I]ntervenors bear far fewer costs, and thus
shoulder far less risk, than petitioners,” meaning
that “a party with a marginal claim would be substantially more likely to intervene than it would be
to file suit in its own right.” New Jersey, 663 F.3d at
1288. Because intervenors do not internalize the full
costs of bringing a suit, it encourages them “to pile
on claims that are not sufficiently meritorious to
justify filing in their own right.” See Richard L.
Revesz and Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect
the Environment and Our Health, Oxford University
Press (2008) (“[W]e need a mechanism that tells us
when to stop spending money. Cost-benefit analysis
is that mechanism.”). A lack of internalization for
intervenors creates an incentive structure at odds
with the original parties to suit and a threat to
economic efficiency.
Litigation is often a lengthy and expensive process.2 Intervenors cause the marginal burden (which
2
These costs are not always monetary. For example, in Keith
v. Daley, 764 F.2d 1265 (7th Cir. 1985), a pro-life organization
sought to intervene in a suit brought by a group of physicians
who challenged the constitutionality of a law that prevented
6
litigants already do not pay) to increase with each
suit presented in the court system. Courts must
listen to additional witnesses, arguments, and demand requests which extend litigation over a much
longer time frame. See Peter A. Appel, Intervention
in Public Law Litigation: The Environmental Paradigm, 78 Wash. U. L. Q. 215 (2000),
http://openscholarship.wustl.edu/law_lawreview/vol7
8/iss1/4. Some have suggested that the flexibility
which encourages parties to intervene facilitates
economic efficiency because it allows a single case to
incorporate multiple claims, precluding “duplicative
suits” and “inconsistent and conflicting decrees.”
Cindy Vreeland, Public Interest Groups, Public Law
Litigation, and Federal Rule 24(a), 57 U. CHI. L.
Rev. 279, 302 (1990). However, their logic does not
hold when the parties seeking to intervene do not
have standing to bring an independent suit. Those
parties’ interests are at best duplicative, and at
worst in outright conflict with the interests of the
original party.
The burden of an intervenor’s cost on litigation
cannot be easily quantified in terms of money, nor
time spent on a case. However, coordination costs
rise for the original parties and for the court because
when intervenors enter litigation, new hearings
must be scheduled, and a new timeline for pleadings
them from performing abortions. While intervention was denied
for reasons not implicating Article III standing, a delay in the
resolution of the case would surely have imposed costs well
beyond attorney’s fees.
7
must be set. When deciding to pursue litigation in
the first place, the original litigants may not have
anticipated an intervention, so their cost-benefit
calculus is distorted post-hoc as they endure delays
in the resolution of their case while courts consider
new issues raised by intervenors. See Vreeland, 57
U. CHI. L. REV. 279 at 299 (“Intervention threatens
control because intervenors will usually introduce
new evidence, new issues, and new positions on
existing issues…New parties always bring with them
new costs, and intervention may so strain resources
that the original parties cannot afford to maintain
the suit.”).
Without sufficient standing requirements, court
systems that already have serious budget constraints
may become further backlogged. See Kenneth E.
Scott, Standing in the Supreme Court—A Functional
Analysis, 86 HARV. L. REV. 645, 673 (1973) (noting
the opportunity costs of litigation provide the court
system with a functional “initial screening barrier”).
The requirement that intervenors have Article III
standing will ensure that courts operate efficiently
and are free of the intervention of unnecessary
parties who bring little to the table.
D.
Requiring Intervenors to Demonstrate
Standing Also Ensures the Courts Are Not
Employed to Decide Ideological Issues.
Standing is designed to limit the judiciary’s jurisdiction to actual cases and controversies, whereas
public policy should be the domain of democratically
elected representatives. For instance, in GutierrezBrizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2015),
8
Judge Gorsuch wondered,
What would happen, for example, if the political majorities who run the legislative and
executive branches could decide cases and
controversies over past facts?... [C]onversely,
what would happen if politically unresponsive and life-tenured judges were permitted
to decide policy questions for the future or
try to execute those policies? The very idea of
self-government would soon be at risk of
withering to the point of pointlessness.
The judiciary cannot address all areas of public
concern, and it would be misguided to allow private
citizens to use the courts towards that end. See
Raines v. Byrd, 521 U.S. 811, 819 (1997), citing
Muskrat v. United States, 219 U. S. 346, 356 (1911)
(“[F]rom its earliest history this [C]ourt has consistently declined to exercise any powers other than
those which are strictly judicial in their nature.”).
The Court has denied standing based on insufficient
interests regarding a number of generalized grievances, from environmentalists, Lujan v. Defenders of
Wildlife, 504 U.S. 555, 573-76 (1992), to taxpayers,
Massachusetts v. Melon, 262 U.S. 447, 488-89 (1923),
to anti-war activists, Schlesinger v. Reservists Comm.
To Stop the War, 418 U.S. 208, 217-220 (1974).
Granting standing to parties with only
generalized grievances forces courts to serve as
moderators “for the vindication of…value interests.”
United States v. SCRAP, 412 U.S. 669, 687 (1973).
Self-styled
public-interest
intervenors
who
frequently bring actions against government entities
and municipalities often lack Article III standing
9
because their interests are “relatively intangible,
abstract, [and] ideological,” as compared to the
concrete interests of the petitioner who initiated the
suit. See Tobias at 419; see also e.g., Lujan, 504 U.S.
555. Many of the intervenors who effectively lack
standing are involved in cases for ideological reasons.
Barring those intervenors without standing helps
prevent “the conversion of [federal] courts…into
judicial versions of college debating forums.” Mausolf
v. Babbitt, 913 F. Supp. 1334, 1344 (1996). Allowing
only parties with standing to intervene allows courts
to avoid becoming involved in political debates.
II. FAILING TO REQUIRE STANDING OF
INTERVENORS POSES A PARTICULAR
PROBLEM FOR STATE AND LOCAL
GOVERNMENTS AND THEIR TAXPAYERS.
When acting as parties to litigation, state and
local government entities suffer the same problems
as other litigants when litigation is unnecessarily
complicated by intervenors. However, the burden
intervenors impose is more magnified in a setting
where state or local government entities are parties.
A. When Intervenors Complicate Litigation
Involving Government Entities, the Increased Cost of the Litigation Falls on
the Taxpayer.
When an intervenor enters a suit where a
government entity is already a party, the increased
litigation costs for the government fall on the
taxpayers. As noted above, intervenors raise costs,
creating issues of particular concern for government
10
litigants. The number and complexity of cases
involving state and local governments has risen in
the past four decades, largely in part to the 1966
amendments to the joinder rules, which gave rise to
what became known as “public law litigation.” See
Appel, 78 Wash. U. L. Q. 215 at 215. Abram Chayes
described public law litigation as involving a
“grievance about the operation of public policy”—
most often governmental policy. See Abram Chayes,
The Role of the Judge in Public Law Litigation, 89
Harv. L. Rev. 1281, 1302 (1976).
The new rules that facilitated intervention,
coupled with the large pool of potential parties to
draw on, have increased the size and frequency of
lawsuits that state and local governments are forced
to defend against. See Vreeland, 57 U. Chi. L. Rev.
279 at 280. These suits are particularly expensive to
litigate as they “involve sprawling party structures,
an emphasis on legislative fact-finding, prospective
relief, ongoing decrees that affect widespread
interests, and active involvement by judges.” Id. at
280. Reduced barriers to entry in public-interest
cases attract ideologically driven intervenors who
will raise costs for the original litigants not only by
“making the litigation more cumbersome, but also
(and more important) by blocking settlement.” Solid
Waste Agency v. United States Army Corps of Eng’rs,
101 F.3d 503, 507 (7th Cir. 1996). The inability for a
government entity to settle a case also adds
unnecessary burden on taxpayers because the suit is
prolonged.
Further, the risk of prolonged and convoluted
11
litigation weighs more heavily on smaller
governments relative to larger cities.3 For example,
New York City reduced its overall litigation costs
after it began a cost-mitigation policy that
encouraged settlement. See Mike Maciag, From
Police Shootings to Playground Injuries, Lawsuits
Drain Cities’ Budgets, Governing the States and
Localities
(November
2016),
http://www.governing.com/ topics/finance/governmentlawsuits-settlements.html. Smaller municipalities
such as the petitioner in this case cannot utilize
similar strategies that require larger economies of
scale.
B. Intervenors in Suits Involving Government Entities May Be More Likely to
Have an Ideological Interest, Resulting in
a Greater Risk of Litigation Over Generalized Grievances.
Standing requirements purposely prevent parties
with only generalized grievances from bringing suit.
Failure to impose standing requirements on
intervenors increases the risk that intervenors will
introduce generalized grievances to a suit. When a
government entity is a party to litigation, it is more
3 Most municipalities are relatively small. In 2015, 84% of
cities, towns and villages in the United States (16,470 of
19,505) had populations of less than 10,000 people.
Statista.com, Number of cities, towns and villages (incorporated
places) in the United States in 2015, by population size,
https://www.statista.com/statistics/ 241695/number-of-us-citiestowns-villages-by-population-size/.
12
likely that a third party will seek intervention
because of ideological concerns about government
regulations or statutes, rather than because of more
concrete and particularized interests in the subject
matter of a suit.
Because government entities craft and execute
public policy, they face the brunt of the costs and the
consequences of increased access to litigation
regarding policy matters. Government entities have
few precious resources to dedicate to litigation
resolution. If standing requirements are relaxed to
allow disinterested parties to intervene in such
cases, this would remove autonomy from
governments and force them to address legal battles
they would otherwise find it prudent to avoid.
The issue is particularly salient in cases with
public policy controversies involving governmental
bodies. Two parties may simply want their
controversy resolved, but must worry about “their
case being taken over by intervenors who present
themselves as concerned citizens or public interest
organization.” Gardner, 69 U. CHI. L. REV. at 702;
see, e.g., Sagebrush Rebellion, Inc. v Watt, 713 F.2d
525 (9th Cir. 1982) (where a wildlife group
intervened to protect bird habitats).
Requiring Article III standing of intervenors does
not prevent these groups from having their views
heard. Rather, they have another avenue that they
could consider instead of burdening litigation as
intervenors: acting as amici. Most courts place few
limitations on who can file an amicus brief or what
13
the brief must say. Amici can impact litigation
without having the same expansive rights as
intervenors. See Appel, 78 WASH. U. L. Q. 215 at 307309. Like intervenors, amici can make their
arguments known to a court through briefs without
adding to the cost of litigation. Research indicates
that well-written amicus briefs from prominent
attorneys in particular can be very influential. Kelly
J. Lynch, Best Friends?: Supreme Court Law Clerks
on Effective Amicus Curiae Briefs, 20 J. L. & POLITICS
33, 52-56 (2004). Parties whose interest is merely to
impact policy should not be permitted to intervene in
the litigation because they can express their views to
the court as amici.
As noted above, municipalities are more likely to
be the victims of intervenors with an ideological
bent, who lack Article III standing. Consider the
example of the polarizing litigation a number of
municipalities, including San Francisco, have
brought against President Trump relating to the
Executive Order entitled, “Enhancing Public Safety
in the Interior of the United States.” Exec. Order No.
13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) or the socalled “sanctuary city” litigation. In these cases,
municipalities have brought suit against President
Trump claiming that the aforementioned executive
order violates the Constitution in a number of ways,
specifically with regard to the Fifth and Tenth
Amendments.
This is a politically charged issue, with people on
both sides of the issue holding unshakable beliefs
that their side is correct. It is not a stretch therefore
14
to imagine that if Article III standing was not
required for intervenors, (which is currently not a
requirement in the Ninth Circuit), residents of San
Francisco would be lining up to intervene in the suit.
Some might argue that the city was wrong not to
comply with the executive order because they will
lose a huge portion of their city’s budget if federal
funding is withdrawn, thereby depriving residents of
needed services. Others may want to intervene
arguing the city should cooperate fully with the
federal government in immigration enforcement
because they have been the victim of a crime
committed by an undocumented person. On the
other side, intervenors may argue that President
Trump’s executive order will cause an increase in
crimes going unreported and erosion of trust between
communities and local law enforcement. Indeed,
someone might seek to intervene because of
increased violence in their neighborhood due to the
community’s fear in reporting crime to the police.
Someone else might intervene to argue that the
executive order prevented her daughter from going to
the police when her spouse was abusing her, which
resulted in her death.
In either case, a federal judge who is already
dealing with expedited briefing and perhaps
expedited discovery under a national microscope
would have to allow additional hearings and
discovery for these added intervenors, which would
waste time and resources for both the court and
parties. These intervenors would likely be seeking
information via written discovery request and
potentially time consuming and costly depositions
15
that do not go to the heart of the case, for example,
information on how the city spends its funds, what
programs it plans to cut if it loses funding, discovery
on police reports, crime statistics, etc. It is not hard
to imagine how the litigation could quickly spiral out
of control.
Now consider if the exact same litigation had
been brought by the City of Chicago against
President Trump in the Seventh Circuit. None of
these intervenors would be allowed in to the suit
unless they could demonstrate independent Article
III standing, which in this hypothetical is unlikely.
Instead, as noted above, they would have the ability
to file amicus briefs to help persuade the court to
decide the case in their favor. This result balances
judicial economy while still allowing these outside
parties to influence the court.
C. Intervention Forces Government Entities
to Litigate Positions Beyond the Point
Where the State Would Choose to Avoid
Further Expenditure of Government
Funds, In Order to Avoid Allowing an Intervening Third Party to Control the Result.
The government entity represents the entirety of
its citizens, while a single intervenor undertakes the
costs of litigation to further its own particularized
preferences. When it comes to intervenors of right,
state and local governments are faced with a
Hobson’s choice—either fully litigate the issue
themselves, or risk allowing a party to intervene as
of right based on inadequacy of representation,
16
which would then allow that party to shape
litigation. Either way, the issue ends up being
litigated to its furthest extent, perhaps against the
wishes of the government, the public at large, and
the taxpayers.
Private citizens and governmental entities have
necessarily different motivations. The ability of
intervenors of right to intervene depends on their
individualized interest in the outcome. However,
state and local government actors ostensibly engage
in litigation to protect the public interest. While the
private interests of intervenors and public interests
of state and local government may line up at least
occasionally, they do not line up all of the time.
Given that governments, by their formation, hold a
monopoly on recognized political power within their
respective jurisdictions, it is more philosophically
consistent not to allow private actors to effectively
act as state and local government actors in litigation.
In Diamond v. Charles, 476 U.S. 54 (1986), the
constitutionality of an Illinois statute concerning
abortion was challenged, and Diamond sought to
intervene as a defendant. When the trial court issued
a preliminary injunction against the law, Diamond
was the sole appellant as an intervenor. This Court
held that for an intervenor to be the sole appellant
from a judgment, the intervenor must “fulfill the
requirements of Article III.” Id. at 68.
By not appealing, the state indicated its
acceptance of that decision and its lack of interest in
defending its own statute. There are a number of
17
reasons why this would be perfectly acceptable
behavior: a number of states prior to Obergefell
declined to appeal decisions against their gay
marriage bans, for instance. When a state or local
government makes such a public policy decision,
intervenors should not be permitted to override that
decision and force the litigation to continue unless
they can demonstrate Article III standing.
The case at bar illustrates how intervenors with
such tenuous interests may needlessly prolong a case
at the expense of a local government. The
controversy in question began when Laroe Estates,
Inc. entered a purchase agreement with the nowdeceased original plaintiff, Steven Sherman. Laroe
Estates, Inc. v. Town of Chester, 828 F.3d 60, 63 (2d
Cir. 2016). The parties signed the agreement in 2003,
when many homeowners purchased homes at prices
above post-Recession values. Id. Now over a decade
later, the circumstances have changed significantly,
yet resolution for the original parties is nowhere in
sight. The current plaintiff (Sherman’s widow) has
asserted that she lacks an “incentive to move the
case forward” and is “unwilling to pursue the claim”
herself. Laroe, 828 F.3d at 67. However, by allowing
Laroe to intervene, the court further prolonged a
case that has already lasted for eight years since the
date of filing, and sixteen years since the original
plaintiff applied for subdivision approval. Id.
(emphasis added).
The circumstances today are nothing like those
the parties anticipated when litigation began. The
Town of Chester continues to bear the cost of a
18
lawsuit that the original plaintiff no longer wishes to
pursue, and for which the intervenor has no
cognizable interest. In the interest of efficiency, such
situations should be prevented by requiring
intervenors to demonstrate Article III standing.
D. Allowing Parties to Intervene Without
Article III Standing Leads To Prolonged
Litigation Because Settlement Becomes
More Difficult.
Judges have utilized standing requirements as
“an efficacious basis for excluding intervention
applicants that would expand the number of litigants
in a lawsuit” amid “increasingly unwieldy party
structure of cases.” See Tobias, 1991 WIS. L. REV. 415
at 440. Settlement negotiations have been harmed by
the introduction of third parties to litigation. As the
Seventh Circuit has observed:
[W]hen the extra litigant may block settlement or receive an award of attorneys’ fees,
it is not simply along for the ride. An intervenor is not an amicus curiae, even a “litigating” amicus curiae (one that introduces evidence at trial). The intervenor seeks control of
the suit, acquires a right to conduct the case in
a way that may undermine the interests of the
original plaintiff…and may become eligible for
a separate grant of relief or an award of attorneys’ fees. Bethune Plaza, Inc. v. Lumpkin,
863 F.2d 525, 531 (7th Cir. 1988).
An example of the settlement issue in litigation
comes Altitude Nines, LLC v. Deep Nines, Inc., Index
19
No. 603268-2008E (N.Y. Sup. Ct. 2008). Deep Nines
used a third-party litigation financier to pay for
commercial litigation prior to Altitude Nines, LLC v.
Deep Nines. Deep Nines settled that initial case for
$25 million dollars, but after paying the financier,
their attorney costs, and court costs, they were only
able to keep $800,000 – just three percent of the
initial settlement.4
The Seventh Circuit addressed the settlement issue in Solid Waste Agency v. United States Army
Corp of Eng’rs. The Court held that “A party cannot
be forced to settle a case. An intervenor acquires the
rights of a party. He can continue the litigation even
if the party on whose side he intervened is eager to
settle.” Id. at 509, citing United States v. City of
Chicago, 897 F.2d 243, 244 (7th Cir. 1990); Bethune
Plaza, Inc. v. Lumpkin, supra, 863 F.2d at 531,
United States v. Yonkers Board of Education, 801
F.2d 593, 596 (2d Cir. 1986). The effect that these
intervenors have on litigation is massive – and
creates an especially large burden when the taxpayers must foot the bill. When government entities are
original parties to a suit, they must be able to settle
that suit when necessary in order to prevent wasteful spending that burdens the taxpayers. Intervenors
drastically undermine the ability of government
4 Stopping The Sale On Lawsuits: A Proposal To Regulate
Third Party Investments In Litigation, U.S. Chamber Institute
For Legal Reform, October 2012,
http://www.instituteforlegalreform.com/ uploads/sites/1/TPLF_Solutions.pdf
20
entities to settle suits.
CONCLUSION
For the foregoing reasons, the judgment of the
Second Circuit Court of Appeals should be reversed.
Respectfully submitted,
LISA SORONEN
STATE AND LOCAL
LEGAL CENTER
5444 Capitol Street NW
Suite 515
Washington, D.C. 20001
(202) 434-4845
[email protected]
SARAH M. SHALF
Counsel of Record
EMORY LAW SCHOOL
SUPREME COURT
ADVOCACY PROGRAM
1301 Clifton Road
Atlanta, GA 30322
(404) 712-4652
[email protected]
CHARLES W. THOMPSON, JR.
INTERNATIONAL MUNCIPAL
LAWYERS ASSOCIATION
51 Monroe Street
Suite 404
Rockville, MD 20850
(202) 466-5424
March 3, 2017